| In Silk Sock SDNY Slugfest
Koffman Supporters Insist They Have Standing
As Voters Writ Large
By Matthew
Russell Lee, Patreon
BBC
- Guardian
UK - Honduras
- The
Source
SDNY COURTHOUSE,
May 10 – Cameron Koffman wants
to unseat Assemblyman Dan
Quart on the Upper East Side
of Manhattan.
But Koffman
most recently voted in
Connecticut. Alongside a New
York State lawsuit, two
Koffman supporters are the
named plaintiffs in a case
against the New York City
Board of Elections.
On May 7 a
hearing was held before U.S.
District Court for the
Southern District of New York
Judge Valerie E. Caproni.
Inner City Press covered it,
below.
Now, the
TRO has been re-requested, and
argued for on Sunday, May 10:
"Re: Tucker v. Bd. of
Elections in the City of New
York, No. 20-cv-03111 (VEC)
Dear Judge Caproni: On behalf
of Plaintiffs in the
above-referenced action, we
write to briefly respond to
the New York City Board of
Elections (“NYCBOE”)
Defendants’ letter May 9, 2020
letter (Dkt. 42). First, the
NYCBOE’s claim that Plaintiffs
do not have standing to assert
their claims as “voters writ
large”—a position for which
they provide no authority
whatsoever—is contrary to
Supreme Court precedent. The
Supreme Court has long
recognized that “[t]he impact
of candidate eligibility
requirements on voters
implicates basic
constitutional rights.”
Anderson v. Celebrezze, 460
U.S. 780, 786 (1983) (emphasis
added). It is disingenuous for
the NYCBOE to argue that
Plaintiffs do not have
standing because they are mere
voters without bothering to
confront this clear Supreme
Court precedent. Second, and
similarly, the NYCBOE
continues to ignore the
three-part balancing test
created by the Supreme Court
nearly four decades ago in
Anderson and further refined
in Burdick. See Burdick v.
Takushi, 504 U.S. 428, 434
(1992); Anderson, 460 U.S. at
789. The Anderson-Burdick
balancing test “serves as a
single standard for evaluating
challenges to voting
restrictions,” Green Party of
Tenn. v. Hargett, 791 F.3d
684, 692 (6th Cir. 2015), and
the NYCBOE cannot simply will
it away. The test must be
applied here because
Plaintiffs challenge a law
that burdens their
“overlapping” rights “to
associate for the advancement
of political beliefs” and to
“cast their votes
effectively.” Williams v.
Rhodes, 393 U.S. 23, 30
(1968).
Under the
required Anderson-Burdick
analysis, the Court “must
first determine the character
and severity of the alleged
burdens” on Plaintiffs’
rights, including their
associational rights.” Green
Party of N.Y. State v. New
York State Bd. of Elections,
389 F.3d 411, 420 (2d Cir.
2004) (applying
Anderson-Burdick). Here, the
burden is severe—Plaintiffs
are being completely deprived
of their ability to associate
with and cast their votes
effectively for their
qualified candidate of choice.
The Court must then “consider
the legitimacy and strength of
the rationale put forward by
[the NYCBOE], and determine
whether it justifies the
extent of the burden on
Plaintiffs’ . . . rights under
the applicable framework.”
Yang v. Kellner, 20 Civ. 3325,
2020 WL 2129597, at *8 (May 5,
2020) (applying
Anderson-Burdick to grant a
preliminary injunction brought
by New York Democratic primary
voters). The NYCBOE and Mr.
Quart still stubbornly refuse
to assert a single state
interest in support of their
position that Cameron Koffman
must be excluded from the
ballot."
From May 7:
Judge Caproni asked the
plaintiffs' lawyers, Are you
conceding that Mr. Koffman
will lose in state
court?
The
answer: No, it's that the
plaintiffs want the
opportunity to vote for Mr.
Koffman.
Judge
Caproni asked, So the last
work is likely to be the
Appellate Division, next
week?
They
answered that the Appellate
Division has jurisdiction over
facts, like the question of
residency.
Judge
Caproni said, Thanks for that
lesson in appellate practice,
it was not what I worked
on.
Plaintiff's lawyer Richard
Emery said, We will be back to
this court if we have to, if
you do not issue a TRO today.
The absentee ballots will be
critical since many will not
come out. The critical moment
is approaching, when absentee
ballots are being printed.
Defendants'
(NYC's) lawyer Kitzinger said,
Currently being printed are
absentee ballots and
*applications* for absentee
ballots, of which 5 million
will have to be mailed
out.
Plaintiffs'
lawyers cited SDNY Judge
Analisa Torres decision "two
days ago" - the Andrew Yang v
Board of Ed case which Inner
City Press covered.
Judge
Caproni noted, New York law
only allows you to have one
electoral residence. And he
voted in
Connecticut.
The answer
was, It's only that you can't
vote in both
places.
At the end Judge
Caproni ruled, "WHEREAS
Plaintiffs did not dispute
BOE's representations and
acknowledged that, if the
absentee ballots indeed name
Mr. Koffman as a candidate, no
emergency relief is required
at this time; IT IS HEREBY
ORDERED that Plaintiffs'
motion for a temporary
restraining order is DENIED as
moot, or, alternatively, for
the lack of any injury. The
Clerk of Court is respectfully
directed to terminate docket
entry 33. IT IS FURTHER
ORDERED that Plaintiffs must
submit any supplemental
authorities in support of
their motion for a preliminary
injunction, as set forth
during the hearing, no later
than 5:00 P.M. on May 7, 2020;
Defendants' responses are due
by May 9, 2020, at 5:00 P.M.
(Signed by Judge Valerie E.
Caproni on 5/7/2020)."
Inner City
Press will stay on the case,
and on the issues. The case is
Tucker et al v. Board of
Elections, 20-cv-3111
(Caproni).
***
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